JUDICIAL PRECEDENT IN EMERGING CONSTITUTIONAL JURISDICTIONS: FORMULATING A DOCTRINE OF . CONSTITUTIONAL STARE DECISIS FOR SINGAPORE Kenny Chng* Abstract: The binding effect of judicial precedents in constitutional law — constitutional stare decisis — raises unique considerations. Being authoritative pronouncements on the proper interpretation of the Constitution, judicial precedents are essential for the effective working of constitutional governance as components of constitutional law: but they are merely judicial precedents and as such susceptible to being overturned. These considerations have been the subject of signifi cant attention in mature constitutional jurisdictions. For instance, in the US Supreme Court, there is a well-established doctrinal framework within which stare decisis operates. However, there does not appear to be in younger constitutional democracies the same serious consideration of how the doctrine of stare decisis should operate in the area of constitutional law. This article aims to investigate how younger constitutional jurisdictions, such as Singapore, can draw upon the experience of other jurisdictions in this regard, and will seek to propose a principled constitutional stare decisis framework that builds upon such experience and is normatively justifi able in the Singapore context. Keywords: Singapore; constitutional law; stare decisis; precedent; Planned Parenthood v Casey; US Supreme Court I. Introduction In constitutional democracies of the common law tradition governed by a written constitution, such as the United States of America (United States), judicial precedents play a crucial part in the interpretation and enforcement of the constitution. Because of “their importance to the architecture of government and their impact on the fundamental relationship between sovereign and citizen” in a constitutional democracy, constitutional judicial precedents have a unique prestige and authority.1 By virtue of this close relationship between constitutional judicial precedents and the constitution, the rule of law concerns of legitimacy and * Kenny Chng, Assistant Professor of Law, Singapore Management University School of Law, 55 Armenian Street, Singapore 179943. [email protected]. The author is deeply grateful to Professor Anton Cooray, Professor of Law, City, University of London and Associate Professor Jaclyn L Neo, Associate Professor of Law, National University of Singapore, for their comments and advice on this article. Any mistakes or omissions remain the author’s responsibility. 1 Randy J Kozel, Settled versus Right: A Theory of Precedent (Cambridge University Press, 2017) p.27. [(2020) 7:1 JICL 127–154] JJICL-7(1).indbICL-7(1).indb 127127 111/06/201/06/20 110:520:52 AAMM 128 Journal of International and Comparative Law stability apply with particular force to such precedents, since the overruling of such precedents can potentially “transform entire areas of law as well as fundamental. social relationships”.2 Yet, constitutional precedents, just like precedents in any other areas of law, can be overturned. Notwithstanding their importance and proximity to the fundamental law of the land, constitutional judicial precedents are distinct from the Constitution itself and are certainly not equal in standing to the text of the Constitution. Indeed, Richard Fallon has observed that while constitutional precedents are highly authoritative and infl uential sources of constitutional law, even long-standing constitutional precedents can be overruled based on differing interpretations of the relevant constitutional provisions.3 These considerations present diffi cult and interesting questions for courts faced with an argument that a particular constitutional precedent should be overruled. How should judges strike a balance between these considerations in coming to a decision? What kinds of factors can judges legitimately take into account? These questions have been the subject of a well-developed body of literature in mature constitutional jurisdictions. For example, in relation to US Supreme Court constitutional precedents, a well-established doctrinal framework exists to govern judicial consideration of such issues. However, these issues may not have received the same attention in relatively younger constitutional democracies, such as Singapore. Yet, constitutional stare decisis will inevitably become increasingly important in such jurisdictions as their constitutional jurisprudence matures with the passage of time. This article aims to investigate how younger constitutional jurisdictions can draw upon the experience of mature jurisdictions in developing a principled approach to constitutional stare decisis. As a matter of methodology, it will proceed in three sections. Section II of this article will study the theory and doctrine of constitutional stare decisis in mature constitutional jurisdictions, drawing upon both academic literature and case law. Section III will identify the principles that Singapore judges have taken into account as a matter of fact in their analysis of constitutional precedents, even though they may not have articulated such considerations expressly as stare decisis principles. This will provide a useful example of how a relatively young common law jurisdiction has dealt with constitutional stare decisis issues. Section IV will synthesise the fi ndings of the preceding parts of this article into a principled constitutional stare decisis framework that builds upon the experience of mature constitutional jurisdictions and is at the same time normatively justifi able in the Singapore context. This article will propose that a factor-based approach to stare decisis analysis is best-suited for Singapore constitutional law. Whether a judicial precedent is wrong in law should be the primary consideration in this analysis. The procedural workability of the precedent and the reliance interests it has engendered should 2 Note, “Constitutional Stare Decisis” (1990) 103(6) Harvard Law Review 1344, 1350. 3 Richard H Fallon Jr, Law and Legitimacy in the Supreme Court (Harvard University Press, 2018) pp.80–81. JJICL-7(1).indbICL-7(1).indb 128128 111/06/201/06/20 110:520:52 AAMM Judicial Precedent in Emerging Constitutional Jurisdictions 129 be relevant considerations, albeit given less weight than incorrectness as a matter of law. For the avoidance of doubt, the focus of this article is on horizontal stare. decisis; that is, stare decisis in relation to the decisions of the highest court vis- à-vis its previous decisions.4 This article does not address vertical stare decisis, which is concerned with the relationship between decisions of the highest court and decisions of lower-level courts. II. ConstitutionalStare Decisis — Comparative Insights This section is concerned with identifying the lessons that we can draw from mature constitutional jurisdictions in the common law world as regards the proper judicial approach to stare decisis in constitutional law. First, we will briefl y set out the theoretical underpinnings of judicial precedents in constitutional law. We will then examine the possible legal approaches towards constitutional precedents that have been suggested and adopted in mature constitutional jurisdictions. A. Th eoretical underpinnings of constitutional stare decisis In relatively mature constitutional jurisdictions, constitutional precedents are generally treated differently from regular non-constitutional judicial precedents. For example, it is widely accepted in the United States and Australia that constitutional precedents should be (and are indeed) treated uniquely as a matter of stare decisis analysis.5 There are competing views in the case law and academic literature regarding the implications of the uniqueness of constitutional precedents, or precedents on constitutional interpretation. One view is that the rule of law concerns of legitimacy and stability rise to the fore and become particularly accentuated in relation to constitutional precedents, in comparison to other forms of judicial precedent (precedents on statutory interpretation or application of common law).6 Since overruling constitutional precedents can have a potentially wide-ranging impact across the law and the political community,7 judges should be relatively more reluctant to overrule them. The opposing view is that judges should be relatively more prepared to overrule constitutional judicial precedents, as compared to judicial precedents relating to ordinary statutory interpretation. The difference between statutory interpretation and constitutional interpretation 4 SeeKozel, Settled versus Right: A Theory of Precedent (n.1), pp.19–21; Michael Adams, “Escaping the Straitjacket: Canada (Attorney General) v. Bedford and the Doctrine of Stare Decisis” (2015) 78(2) Saskatchewan Law Review 325, 328. 5 For an elaboration of this feature of US constitutional jurisprudence, see Kozel, Settled versus Right: A Theory of Precedent (n.1), p.27. Australia, which also operates as a constitutional supremacy, abides by a similar principle: see Gian Boeddu and Richard Haigh, “Terms of Convenience: Examining Constitutional Overrulings by the High Court” (2003) 31(1) Federal Law Review 167, 168–169. 6 Kozel,Settled versus Right: A Theory of Precedent (n.1), p.27. 7 See works referred to in note 2. JJICL-7(1).indbICL-7(1).indb 129129 111/06/201/06/20 110:520:52 AAMM 130 Journal of International and Comparative Law is that, while the legislature may with relative ease (for instance, with a simple majority in the legislature)